Upper Tribunal (Administrative Appeals Chamber)

THE UPPER TRIBUNAL                                                          Appeal No. CE 4174 2013 

ADMINISTRATIVE APPEALS CHAMBER

NH v Secretary of State for Work and Pensions (ESA)

DECISION

The appeal is allowed. For the reasons below, the decision of the tribunal is set aside. With the consent of both parties, I replace the decision of the tribunal with the following decision:

            Appeal allowed. The decision of the Secretary of State of 3 09 2012 is set      aside. The decision of the Secretary of State of 27 02 2012 awarding the           appellant employment and support allowance from that date therefore    remains in effect.     

This decision is made under the authority of the Tribunals, Courts and Enforcement Act 2007 section 12(2)(b)(ii). 

REASONS FOR DECISION

1          The claimant and appellant is appealing against a decision of the First-tier Tribunal sitting at Carlisle on 11 07 2013. The parties have agreed that I set aside the decision of the tribunal, and replace it with the decision set out above, for the reasons given when I granted permission to appeal. These are:

“2         The appellant was awarded employment and support allowance from 27 02 2012 because of fibromyalgia, irritable bowel syndrome and tuberculosis, though the relevant award decision and papers are not in the tribunal papers.  Following standard procedures the appellant completed a form ESA 50 and attended a medical examination on 4 07 2012. The examination was conducted by a registered nurse. Her report is in standard computer form ESA85. The decision under appeal was made on 3 09 2012. It adopted the conclusion of the medical examination that the appellant did not have limited capability for work while noting none of the deficiencies in the ESA85 I discuss below. I note in passing the strong criticism by the appellant of the way that she was notified of this decision, using the wrong gender, the wrong name, and the wrong marital status in a document that has the distinct air of being a standard form hastily and inadequately tailored for this case. However, the decision that now concerns me is that of the First-tier Tribunal.

The evidence

3          The appellant gave evidence in her ESA50 replies of ongoing fibromyalgia, lower back and hip problems and anxiety and depression. She also noted ongoing TB treatments. She identified varying limits to her physical abilities, giving comments about why they were variable. Similarly, she indicated variable problems with communications, initiating actions, coping with change and coping with social situations with occasional behavioural problems. She obtained and included a letter from her general practitioner confirming work related stress, anxiety and depression as well as problems caused by pain and stiffness resulting from fibromyalgia and mechanical back problems.

4          The ESA85 was completed by a registered nurse. There should be two aspects to that report: the physical limitations of the appellant and her mental health.

5          Dealing first with the mental health issues, the nurse appears to have failed to conduct any clinical examination of evidential value. For a start, the nurse failed to make any note under “medical conditions” of the contended anxiety and depression although they are plainly to be seen on the ESA50 and a current prescription for a daily antidepressant is noted by the nurse. Only when one turns to the “personalised summary statement” at the end of the report does one see anything relevant to consideration of depression. Why was it noted here but not earlier in the report?

6          There is no sign elsewhere in the report of any positive input by the nurse to this aspect of the report. There are phrases carried forward as usual by the computer from the “description of a typical day”. These carry forward typing mistakes from one of the boxes to others uncorrected (see for example the positions of full stops and the resulting failure to capitalise letters), suggesting that they were transferred by the computer programme without any editorial consideration.  Nothing was corrected nor added in this part of the report. Nor are there any findings recorded in this section of the report other than the computer generated “relevant normal findings”.  This is made obvious from the inclusion in the standard findings in that part of the report that the appellant “was able to sit still during the interview”. Under “behaviour observed during assessment” and again in the “personalised” summary it is recorded “client stood for 30 minutes throughout the assessment. she leant against the wall.” (This was again carried forward by the computer without the obvious typographical errors being corrected. I also observe in passing that the examination is recorded as taking longer than 30 minutes at the start of the report.) In other words, the report contained and purported to rely on diametrically opposed observations on that point. Other relevant aspects of the appellant’s personal account such as “always sleeps poorly due to worrying about things and pain” were not carried forward or subject to any evaluation. 

7          As noted, there is a full personal history. Elements of that are also puzzling. For example, it states that the appellant had no difficulty completing the ESA50 though the handwriting on the form is plainly very different to the signature at the end of it, the latter but not the former being consistent with that of the handwriting of the person who wrote letters as the appellant. Did she fill in the form, or was that assumed without any question being asked?

8          Turning to physical descriptors, under “relevant features of clinical examination” the report records “Not assessed due to clients pain” against both lower limbs and upper limbs. Consistently with that, the report contains none of the usual clinical evidence about, for example, limb mobility. Indeed, under the section “general” medical examination findings it states “Client stated she was in pain and discomfort today. Therefore not assessed.” Yet that did not stop the nurse assessing that the appellant had “none of the above” limitations to mobilising, sitting, standing, reaching, picking up, or manual dexterity without commenting in any way on the pain and discomfort that stopped her carrying out a physical examination. Why did the nurse assess what she said she was not assessing? 

9          In summary, the only clinical evidence in the report of any weight is that the pain and discomfort being experienced by the appellant at the time of the examination was such that the nurse felt unable to conduct most aspects of the usual physical examinations. She did not even see whether the appellant could sit. There is also, put bluntly, nothing of evidential value about the mental health issues.

10        In light of the above, it has to be said that this report not only calls into question whether the nurse actually conducted a mental health examination as reported or even read the report she submitted before doing so but also more generally the evidential value of a report conducted or purportedly conducted by a nurse when there is no indication that the nurse had any specific qualifications to conduct that aspect of the examination. Was she aware of the importance in this case of examining the mental health issues? Was she qualified to give the advice she gave about them? If so, why is this report so deficient in that area? It also calls into question the validity of a report produced by a computer programme that allows the operator to delete the whole of the relevant parts of the report which should record results of a clinical physical examination so that there is no “supporting medical evidence” while still generating unqualified opinions about unexamined physical functions for which there is no such evidence.

11        Besides the general practitioner’s letter the appellant also produced a recent sick note (the operative part of which is missing from the tribunal papers), a personal statement about the effect on the appellant of her fibromyalgia and her anxiety and depression, and a report of four therapy sessions conducted by a member of the British Association of Counselling and Psychotherapy during 2013 and reported by the counsellor. This includes clinical evidence of a high incidence of intrusive thoughts, grief, and work and social problems and a moderate incidence of anxiety and depression. 

12        As noted, the record of proceedings is short and adds nothing of substance to the points made by the tribunal in its statement of reasons. I make that comment because I would normally expect to read the statement of reasons and record of proceedings together in a case such as this to see what the First-tier Tribunal had discussed.      

The tribunal decision

13        The tribunal made no finding about the appellant’s depression and other mental health problems, noting only anxiety. It noted that the appellant was receiving no medication for anxiety but did not note either the appellant’s explanation for this nor the evidence of the therapy she had been receiving for it. That is of itself problematic as there is clear medical evidence in the papers that relevant drugs were being prescribed to the appellant for her mental health problems at the time of the original decision even if they had stopped at the time of the tribunal hearing. Was the tribunal confining itself to evidence of circumstances at the date of the original decision? This suggests not. The tribunal formed the general view that the appellant “was evasive when asked direct questions and frequently did not give direct answers”. It did so without appearing to consider the possible relationships between that and the problems recorded by the psychotherapist or, as I note below, the question of variability. Inconsistently, it also formed the view that she communicated “perfectly well with” the tribunal. 

14        Turning to the physical descriptors, the tribunal dealt only cursorily with abilities to reach, pick things up and manual dexterity because “these tests describe simple tasks with the hands and arms” and the appellant “can and does do them all probably several times a day.” On what evidence it reached that conclusion is not stated. Further, the tribunal opined, the GP evidence does not contradict this and the medical assessment confirms it. With regard to the back problem, the tribunal opined that “there is no confirmed diagnosis” but noted what “a physiotherapist said”. It added that the appellant had not been referred by the general practitioner to a specialist, while failing to comment that the general practitioner had diagnosed mechanical back problems and was fully aware of treatment by a physiotherapist. The appellant added in her grounds of appeal that she had also told the tribunal about help from an osteopath but the tribunal had ignored that evidence. More generally I am left puzzled why in this case the tribunal did not accept evidence about diagnosis by a physiotherapist or the linked evidence when tribunals are routinely presented with such evidence by the Secretary of State.

Grounds of appeal

15        I am frankly not surprised, given the above, that the appellant put in lengthy grounds of appeal objecting in detail to the entire process by which her employment and support allowance was stopped. Indeed, my own concern about the process explains why I have set out the history so fully. The “system” has failed to deal with the appellant’s problems fairly and adequately on repeated occasions.

16        The tribunal’s decision is plainly in error of law. It fails adequately to deal either with most of the physical descriptors or the mental health descriptors. It relies on a medical examination report which provides no relevant evidence of any weight while apparently ignoring other independent expert evidence. It confuses evidence about the situation at the date of the hearing with evidence about the situation at the date of the original decision.

17        Another issue is variability. As the appellant observes in her grounds of appeal, the tribunal at paragraph 4 of its decision appears to criticise her for “not addressing specific descriptors except in a fairly vague manner … and in her ESA50 … usually ticks the “it varies” box”. That may help explain the other comment by the tribunal about the appellant not answering questions as I have noted above. The appellant asks about this: “… my condition varies. What was I supposed to say?” The answer is that she is expected to answer the questions asked by the Secretary of State in one of the ways provided. This she did, and she should not be criticised for doing so. Further, the tribunal totally failed to deal with the question of variability itself despite the explicit evidence of the general practitioner that the condition is variable and the implicit evidence in the ESA85 that at times the appellant suffers so significantly from her physical problems that medical examination was inappropriate. 

Conclusion

18        I must conclude by commenting that this is one of the most disturbing examples of repeated failure fairly to assess the actual medical problems of an appellant that I have seen for some time. Indeed, it is disturbing enough to call aspects of the system itself into question as I have indicated above. In her grounds of appeal the appellant stated: “It would appear there is little or no regard for people (including myself) who have mental health issues and fluctuating physical conditions … the whole system is quite insulting and degrading – it makes people more ill, it is very stressful.” I regret that this was the conclusion to which the appellant came, but in the circumstances I think it right to note that that was her conclusion. If there is a positive outcome to the process before it came to the Upper Tribunal it is, I am told, that when the general practitioner was informed of the importance attached by the First-tier Tribunal to the failure of the general practitioner to refer the appellant to a specialist the general practitioner promptly did precisely that.

19        It is plain that the decision of the First-tier Tribunal cannot stand. What should I now decide, 16 months after the original decision and over 18 months after the medical examination? In my view the only fair decision that can now be taken, bearing in mind in particular the signal failure of the First-tier Tribunal to address this appeal adequately, is to set aside the First-tier Tribunal decision. I should then take the decision that the tribunal should have taken. I see little value in sending this back to another First-tier Tribunal which might hear the appeal only after further delay and yet still have to refer to the evidence of circumstances in mid 2012. Another medical examination is not going to help with that.

20        On the evidence before the tribunal, as noted above, I have little hesitation in saying that the only fair decision is to set aside the supersession decision of 3 09 2012. It is purportedly based on a medical examination which is seriously deficient and which does not bear the evidential weight put on it. I have no idea on what evidence the employment and support allowance was originally awarded by the Secretary of State because that has not been included in the papers. I therefore assume that that decision was properly made. On that basis, I consider that I should remove the supersession decision and thereby reinstate the award of employment and support allowance. It will be for the Secretary of State, if he so wishes, to obtain proper evidence on which to consider whether to disturb that decision by a further supersession. I can see no sound evidential basis for a supersession on the evidence now before me. Nor can I see any sound basis for considering the tests in Schedule 3, although they are clearly relevant. For example, there is no actual evidence that the appellant can transfer from one seat to another without assistance. She did not sit at any stage of either the medical examination or the tribunal hearing.”

3          Since issuing that provisional view, I have received further medical evidence from the appellant. This is in the form of a report from a specialist physiotherapist to the appellant’s general practitioner, produced in November 2013 after discussion with a consultant neurosurgeon. While that plainly was not relevant to the decision of the First-tier Tribunal, it is evidence that I may now consider in replacing that decision. It confirms longstanding problems with the appellant’s cervical spine (at C2, and occasionally affecting cervical nerves C6 and C8), her mid thoracic spine (causing constant pain bilaterally) and her lumbar spine (again causing constant pain) all following traffic accidents pre 2000. If there were any doubt in this case about medical diagnosis, then this removes it. The report recommends that an MRI be undertaken of the lumbar spine and surgical intervention considered. The report confirms my view about the outcome decision that should be taken.

4          The report also confirms my concerns when I first considered the application about the relevance of different specialists in a case like this:

            “[The appellant] has managed her symptoms over the last 13 years with     conservative treatment. She has tried chiropractic, osteopathy, physiotherapy,            acupuncture and TENS machine. These are all beneficial in the short term only …

            She has been seen by the Pain clinic and diagnosed with fibromyalgia.”

The evidence about each of those forms of treatment may constitute relevant evidence in a case like this. So may evidence of counselling and therapy sessions such as those reported by a therapist in a contemporary report handed to the tribunal but apparently also ignored by the tribunal. But I do not need at this stage to seek further evidence from any of those sources.   

David Williams

Upper Tribunal Judge

13 03 2014

[Signed on the original on the date stated]